On 18 October 2024, the Dutch government announced supplemental controls for exports of certain emerging technology items from the Netherlands. These controls will enter into force on 1 December 2024 and will be implemented through the Dutch Regulations Supplemental Controls to the Dual-Use Regulation (Regeling aanvullende controlemaatregelen op de Verordening producten voor tweeërlei gebruik, the “Dutch Regulations“). The official text of the Dutch Regulations is available here.
Scope of Unilaterally Controlled Items
The Dutch Regulations control the export of “Unilaterally Controlled Items” as listed in the Annex thereto. The Unilaterally Controlled Items include certain goods, technology and software that are related to specific high-quality and sensitive technologies deriving from the semiconductor, quantum and additive manufacturing sectors.
Although the relevant items are indicated by ECCNs, these ECCNs are specific for the Dutch Regulations as these are not currently present in Annex I to the EU Dual-Use Regulation 2021/821. The Dutch supplemental controls for exports of certain advanced semiconductor production equipment, as introduced in September 2023 (see our blog here), will similarly continue to apply separately.
“Country neutral” – License requirement for all exports outside the EU
The licensing requirements under the Dutch Regulations are “country neutral”. This means that a prior license is required for exports of Unilaterally Controlled Items from the Netherlands to all destinations outside the European Union. Intra-Union transfers from the Netherlands to other EU Member States are not subject to this requirement.
The Dutch government has however sought to alleviate the burden on exporters, to at least a certain extent, by introducing the new National General Export Authorization NL900 (available here, “NGEA NL900“). NGEA NL900 authorizes most exports of Unilaterally Controlled Items to destinations in Australia, Canada, Iceland, Japan, Liechtenstein, New Zealand, Norway, Switzerland, the United Kingdom and the United States of America. These countries are similarly covered by Union General Export Authorization EU001 under the EU Dual-Use Regulation. Use of NGEA NL900 requires a prior one-off registration with Dutch Customs at least two weeks before the first export under this authorization takes place.
For exports that are not covered by NGEA NL900, a global license (valid for exports to one or more end-users in one or more specified third countries) or individual license (valid for one end-user in a third country) needs to be obtained. Importantly, however, the explanatory notes to the Dutch Regulations make clear that exporters need to have an Internal Compliance Program to obtain a global license. Therefore, this type of license may not be readily available for all exporters.
Key takeaways
The introduction of the supplemental controls under the Dutch Regulations fits in a wider trend of unilateral controls being imposed by jurisdictions outside the ‘traditional’ frameworks of multilateral export regimes, such as the Wassenaar Arrangement, or, within the EU, Annex I to the EU Dual-Use Regulation. Indeed, the Dutch government asserts that other EU Member States had already taken similar measures and that the Dutch controls were necessary to “safeguard the level playing field” as soon as possible.
Although the scope of Unilaterally Controlled Items is broadly aligned with that under supplemental controls of other countries, this is not necessarily the case for all items and jurisdictions. This results in a “patchwork” of controls for exporters to navigate through. This means that exporters need to be mindful of the existence of – and differences between – applicable national control lists, licensing requirements and other obligations in the various countries where they do business.
